Legal ethics, Kant and Adam Smith

Legal ethicist Neil Watt has a rather depressing article at Richard Ackland’s “Justinian” about the glacial pace of progress towards nationally consistent solicitors’ rules aimed at achieving uniform ethical standards for Australian lawyers:

I expected everyone around that table to be committed to the best of ethical standards free of self-interest. I expected members of an ethics committee to understand the importance of principle and to ensure the rules we wrote were based on the best of these. I expected us all to reach for something better than mere minimum standards. I expected us to ensure any interstate agreement didn’t become an exercise in ethical compromise – a mad dash to mediocrity.

I discovered, after three years of battles over principle, that my idealism was misplaced. …

Mostly we had battles over what the law would allow rather than what was the right thing to do. And there’s the difference between ethics and law. Law states what we must do, while ethics is about what we ought to do.

A committee charged with providing ethical leadership to the solicitors of Australia shouldn’t be focussed on what we can get away with, but what is in the best interests of the profession and the people we serve.

To do that effectively we have to divorce ourselves from self-interest, and there lies the rub. …

Perhaps imagining that it is even possible for an entire industry/profession (or even its leadership) to divorce itself from self-interest is the problem here.

Neil Watt advances sophisticated versions of the familiar legal profession justifications for the supposed necessity of self-regulation:

I’ve always believed lawyers should set their own standards, for a couple of reasons.

As officers of the court lawyers must be independent of government. Also, professional standards can never be adequately imposed solely by rules. Ethics will only take hold when the profession itself takes responsibility for the behaviour of its members and places expectations on them to act ethically.

The first argument is easily dealt with.  Judges, administrative tribunal members, ombudsmen and other such officials are appointed by governments, but few argue that they are not fearlessly independent. Westminster-derived systems like ours are adept at creating terms of appointment and regulatory structures which ensure independent, impartial judgment. Clearly any legal profession regulator will require representation from the profession so it is adequately informed about what lawyers actually do, why they do it and what they see as workable professional conduct rules. But that does not mean the regulator should be bound by the profession’s own view of itself (or that representatives of the profession should form a majority of the regulator’s board, which is essentially the same thing).

Similarly with Watt’s second argument (standards can’t be adequately imposed solely by rules).  Our legal system is accustomed to dealing with rules which involve significant elements of subjective evaluation and discretion, both on the part of those required to obey them and those adjudging whether they have been breached.  Tests of “reasonableness” are the most ubiquitous example.  It is not beyond the wit of legal professional disciplinary bodies to flesh out the bones of “black letter” ethical standards by these familiar means.

Watt’s third argument is rather more interesting.  Like Watt, Immanuel Kant saw morality (a close cousin to ethics) as not truly being constituted unless individuals performed good deeds through an internalised sense of duty. Watt doesn’t quite go that far,apparently he sees it as both feasible and sufficient for the profession’s leaders to have internalised an adequate sense of duty (though he concedes at the end of the article that his own experiences rather suggest they haven’t).

Kant’s British contemporary Adam Smith had a rather more pragmatic (and arguably realistic) view.  Notions of “sympathy” certainly gave rise to an internalised morality he called the “Impartial Spectator”, but its force decreased as levels of acquaintance moved beyond family, friends and one’s immediate neighbours.  Hence Smith in his later foundational economic work posited markets and competition, together with regulation where necessary, as a surer basis for socially desirable activity.  Smith’s famous statement in The Wealth of Nations encapsulates this concept:

“It is not from the benevolence of the butcher the brewer, or the baker that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity, but to their self-love, and never talk to them of our own necessities, but of their advantages.”

In a contemporary, mobile, multicultural, post-industrial society like ours, the restraining ties of sympathy and the Impartial Spectator are fairly weak, among lawyers no less than other social groups. In my view it is somewhat naive to imagine that lawyers, either individually or as a group/profession can by whatever means (presumably including law school education) be rendered less prone to self-interest than any other group in society.

That is not to say we should use any less than our best endeavours as members of the profession to inculcate and enforce a strong sense of ethics, but we also should not imagine that those efforts can ever be enough in the absence of credible and independent (of the profession) regulatory oversight. The role of lawyers in the justice system is a crucially important one. For justice to be meaningfully delivered we must be able to ensure that the overwhelming majority of lawyers will always act ethically.  As far as I can tell most actually do, but I’m sure we can do a lot better, and I’m equally sure that higher ethical standards won’t be achieved without a significant element of external regulatory oversight.

Ultimately one can argue that it doesn’t matter whether lawyers exhibit ethical behaviour because they have internalised the relevant underlying moral values or because they fear punishment.  On the other hand I have some sympathy (in a different sense from Adam Smith) for the views of contemporary moral philosopher Emrys Westacott in an article titled Does Surveillance Make Us Morally Better?:

The upshot of these reflections is that the relation between surveillance and moral edification is complicated. In some contexts, surveillance helps keep us on track and thereby reinforces good habits that become second nature. In other contexts, it can hinder moral development by steering us away from or obscuring the saintly ideal of genuinely disinterested action. And that ideal is worth keeping alive.

Some will object that the saintly ideal is utopian. And it is. But utopian ideals are valuable. It’s true that they do not help us deal with specific, concrete, short-term problems, such as how to keep drunk drivers off the road, or how to ensure that people pay their taxes. Rather, like a distant star, they provide a fixed point that we can use to navigate by. Ideals help us to take stock every so often of where we are, of where we’re going, and of whether we really want to head further in that direction. …

One of the goals of moral education is to cultivate a conscience – the little voice inside telling us that we should do what is right because it is right. As surveillance becomes increasingly ubiquitous, however, the chances are reduced that conscience will ever be anything more than the little voice inside telling us that someone, somewhere, may be watching.


9 thoughts on “Legal ethics, Kant and Adam Smith”

  1. I have always worried about regulators – what is driving them to perform this duty, and who is regulating them ? All of us have seen instances where their actions are not doing what is ‘the right thing’, but have political or self-interest at heart, using regulatory powers to impose their will upon those under them.
    An additional example could be seen in speed cameras – the principal of independent, non-judgemental enforcement of speeding regulations can be seen as it’s aim, however it now seems to be more a means of revenue collection, where Governments already budget for increased revenue from them rather than hoping for a reduced revenue as a result from a more compliant driving community.

  2. Ian, I wonder if the example of speed cameras is a valid comparison, remember that in VIC the nanny state likes to over penalise us for effectively victimless crimes on the “what if” basis.

    So too the self regulation and surveillance of practitioners may be construed as a case of “there was once this bad lawyer, so they must all be bad” rationale/fear mongering.

    I think that we live in a multi media savvy age whereby it’s easy to establish the availability of information for both the consumer and advocate warrants and this in turn some form of self regulation on the part of the practitioner and a modicum of responsibility on the part of the client.

    Remember there are a few too many disgruntled clients ready to sue their advocate if they are disatisfied with an outcome. Herein a resolution to enforce a compulsory liability insurance for practitioners lest they fail the self regulation test.

    I fear that these days common sense is like a super power these days and self regulation my also be a victim of societal need for rules, standards and finite control.

    1. Agree. Who watches the watchers? And indeed who sanctions them. We are overburdened with rules and reg as it is and to what end? Adding more crap is not the answer.
      Sometimes folk fall flat on their faces. That’s normal.

  3. I find that last point interesting, it talks about regulations going too fair to the point that it impedes on our ability (being our conscience) to act for itself. It says that ‘the chances are reduced will ever be more than the little voice inside telling us that someone, somewhere is watching us.’ It is like the more we are regulated the more we need regulating and so the cycle continues – it turns into a very nanny-like state. It would surely be a lot better for society in general if people were able to utilise their conscience to its full extent instead of having to be manipulated by regulations into the correct choice.

  4. Ahhh Ken. We always come back to the question of “who watches the watchers”? I support self regulation as in business this will always out the bastards – eventually. Competition is a great leveller and perhaps your analogy of the legal profession and it’s purported failings in this regard is somewhat insular.

  5. To non-lawyers (or students like me) it’s rather confronting to be informed early in studying criminal law to learn that a verdict of guilty or not-guilty is almost nothing to do with “justice” in the non-legal sense of “what is right” but instead is only about what can be proven.

    Similarly it is confronting to have an ethics policy which even hints at “what we can get away with”. All ASX listed companies are effectively required to have an ethics policy or code of conduct, and I was recently given the task to review ours and recommend changes, if any. Ours, like many, was a long and complex document (originally drafted by a prominent Sydney law firm). My recommendation was to chuck it away and have an ethics policy which consisted of three words – “Do what’s right.” After all, from kinder onwards every person knows in their heart whether what they are doing is proper or not in accordance with their society’s norms.

    I didn’t get away with that, but my work discovered that the policy was not in any way concerned with guiding the actions of our employees – it was instead to protect board and management from any comeback if an employee did commit an act such as bribery, sexual harrassment etc, by providing a defence along the lines of “we told them not to”.

    My concept of providing a policy which actually suggested practical guidelines as to what to do in different circumstances was considered naiive at best and dangerous at worst, but I persisted and got it reduced to four pages and as clear English as I could achieve.

    I still think “Do what’s right” is better though.

  6. At the beginning of my Law studies, I was told “If you think the law is about Justice – you are wrong”. From my own insight – that statement seems correct. It’s about money. Regulators may be regulating, and lawyers are out there doing the right thing. There are also lawyers who have stopped practicing, due to ethics. But if these lawyers that don’t comply, that don’t get ‘caught’, I can’t see that they could even eventually be found. In a lot of instances, the fact is, that lawyers know enough, to keep them out of trouble. If they don’t – you’re not a good lawyer.

  7. “For justice to be meaningfully delivered we must be able to ensure that the overwhelming majority of lawyers will always act ethically. As far as I can tell most actually do, but I’m sure we can do a lot better, and I’m equally sure that higher ethical standards won’t be achieved without a significant element of external regulatory oversight.

    Ultimately one can argue that it doesn’t matter whether lawyers exhibit ethical behaviour because they have internalised the relevant underlying moral values or because they fear punishment.”

    Mr Parish, you look at your profession with the eyes of the professional, not the client. I have watched, to date, 6 solicitors, 3 barristers and 1 Magistrate in a Family Law matter close to my heart completely disregard both their client and the evidence put before them. As a law student we are taught the basic principals that our future profession is supposed to adhere to. The fact is they don’t. Solicitors can mishandle cases and contrive to draw matters out for financial gain, double dip on accounts, send innocuous and threatening letters for no gain that are not relevant to any case, and the abuse of what we are taught are fundamentals of the law – evidence wins out in the end – is a fiction that has been contrived to make those incompetent professionals and biased Magistrates feel better.

    The Family Court, as described to me by a barrister I worked for, is a “Kangaroo Court” – no real rules save for what the Magistrate thinks and feels at the time. And you can pray as much as you want, but if the Magistrate is gay and hates men you can forget about the elusive but often touted “justice”.

    No Mr Parish, there are far too many people who’s livelihoods would be ruined through their own incompetence if there were any real “rules” governing them. As it is, Appeals are expensive and that suits most professionals well, as most litigants have paid an arm and a leg to get to where they are now – and they are tired and making up more lawyer jokes in their spare time.

    Ethics in Family Law, you might as well be expecting pigs to fly.

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